Tripura High Court
Smt. Rabia Begam vs Mansur Ali on 26 November, 2021
Author: S.G. Chattopadhyay
Bench: S.G. Chattopadhyay
Page - 1 of 9
HIGH COURT OF TRIPURA
AGARTALA
Crl. Rev. P. No. 31 of 2021
Smt. Rabia Begam,
Wife of Mansur Ali, resident of East Yeaze Khowra, P.S. Irani, District-
Unakoti, Tripura.
----- Petitioner(s)
Versus
Mansur Ali,
Son of Late Manohar Ali, resident of East Yeaze Khowra, P.S. Irani,
District- Unakoti, Tripura
-----Respondent(s)
For Petitioner(s) : Mr. A.K. Pal, Adv.
For Respondent(s) : Mr. P. Sen Chowdhury, Adv.
Date of Hearing : 29th September, 2021.
Date of Pronouncement : 26th November, 2021.
Whether fit for reporting : NO
B_E_F_O_R_E_
HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY
JUDGMENT & ORDER
By means of filing this criminal revision petition under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (Cr.P.C hereunder), Petitioner Smt. Rabia Begam has challenged the impugned judgment and order dated 05.04.2021 passed by the Family Court, Kailashahar in Crl. Misc. (125)-04 of 2020 declining to grant Crl. Rev. P. No. 31 of 2021 Page - 2 of 9 maintenance allowance to the petitioner in a proceeding under section 125 Cr.P.C.
[2] Factual background of the case is as under:
Petitioner Rabia Begam filed a petition under section 125 Cr.P.C in Family Court, Kailashahar alleging that she was married to the respondent on 20.02.2009 in accordance with rites of Muslim marriage. After marriage, she accompanied her husband to his place. A Kabinnama was also executed on 15.06.2016. She claimed that she was married to the respondent during the subsistence of his first marriage. Six months after her marriage, her respondent husband demanded a sum of Rs.1,00,000/- from her. Since she failed to fulfill his demand, her husband committed physical torture on her. For redress she lodged a complaint in the court of the Chief Judicial Magistrate which was registered as CR 223 of 2016. During pendency of the case matter was settled between them at the intervention of the neighbours. Thereafter, she returned to her husband. Few months thereafter her husband left home to find out a job in a country in the Middle East from where her husband used to send money for her maintenance. At that time she fell seriously ill. She required huge amount of money for treatment. When She met her in-laws for assistance, they assaulted her and ousted her from her matrimonial home. She then filed PRC 73 of 2019 under section 498A, 325 and 34 IPC against her husband and in-laws. She Crl. Rev. P. No. 31 of 2021 Page - 3 of 9 also filed a separate petition in the Family Court seeking maintenance allowance under section 125 Cr.P.C which was registered as Crl. Misc. (125) 52 of 2019 but the said case was dismissed for default since she could not appear in the Family Court on a day fixed for hearing on account of her illness. Thereafter, her husband returned from abroad and met the petitioner along with his relatives. He terrorized the petitioner by saying that unless she withdraws all cases lodged by her against her husband and in-laws she would face serious consequence.
Petitioner then approached the Family Court by filing a fresh petition under section 125 Cr.P.C. claiming a monthly maintenance allowance of a sum of Rs.8,000/-. She stated in her petition that her husband was a driver. Moreover, he is the owner of about 20 kani of land having various kinds of plantation from which he earns Rs.35,000/- per month. [3] Respondent contested the case by filing written objection in the Family court wherein he denied the marriage with the petitioner. He claimed that petitioner filed several cases against him and his relatives which were all dismissed after trial. Even in the earlier petition filed under section 125 Cr.P.C. petitioner could not prove her marriage with the respondent as a result of which court declined to grant maintenance allowance to her. Respondent further contended in his written objection that meeting was also held at the Panchayet level to examine the claim of the petitioner and it was resolved by the local Crl. Rev. P. No. 31 of 2021 Page - 4 of 9 Panchayet that there was no proof of marriage between the petitioner and the respondent. The respondent, therefore, wanted the Family Court to reject the claim of the petitioner.
[4] In the course of trial, petitioner examined herself as PW- 1, one Sayad Khan as PW-2 and her neighbour Hamza Begam as PW-3. [5] The respondent on the other hand examined himself as OPW-1, his neighbours Tuta Mia as OPW-2 and Ful Miah as OPW-3. [6] After appreciation of evidence, Judge, Family Court, Kailashahar by the impugned judgment and order dismissed the case of the petitioner mainly on the ground that factum of marriage was not proved in the case and therefore petitioner was not entitled to any maintenance allowance. Relevant extract of the impugned judgment is as under:
"12) Pertinent to mention here is that the petitioner has relied upon a charge-sheet filed by Irani PS wherein she has alleged torture on demands dowry. In that case the opposite party has been charge sheeted. While the petitioner relies upon variety of documents like Kabinnama affidavit, charge sheet she does not have any personal document like Aadhar card, voter id card, ration card or ROR wherein the name of her husband has been cited as Monsur Ali, i.e., the opposite party. There are further inconsistencies in her story. She reveals that her husband never took her to his house rather stayed with her in her father's house. Thus the story told in her petition that she was tortured by family members of the opposite party and thrown out of matrimonial house seems untrue because she never went to her matrimonial Crl. Rev. P. No. 31 of 2021 Page - 5 of 9 home as per her own version. On the other hand, opposite party denied and disputed all the allegations against him.
The opposite party has also adduced witnesses who are also resident of the same village and claimed that there is no relationship between the petitioner and the opposite party. It is evident that the petitioner and the opposite party are residents of same neighbourhood, at best of adjacent panchayets. It is therefore difficult to belief that the petitioner did not know that the opposite party was married. The opposite party has relied upon decision rendered by the Court of the JM 1st Class wherein an application under Protection of Women from Domestic Violence Act the Ld. Court was pleased to deny reliefs to the petitioner on grounds that she could not prove that she was a legally wedded wife of the opposite party. Previous cases like CR. 223 of 2016 have not been brought on record for assessment by the court.
13) It is a settled proposition of law that the standard of proof of marriage for the purpose of a proceeding u/s 125 Cr.P.C is not as strict as required for the purpose of trial for offence u/s 494 IPC [Dwarika Prashad Satpathy Vs. Bidyut Prava Dixit and Another (1999) 7 SCC 675]. But even when the standard of proof being less in proceeding u/s 125 Cr.P.C wherein the object is to prevent vagrancy and destitution and provide speedy remedy to the deserted wife, the petitioner has to nonetheless prove that she is the legally wedded wife of the opposite party or had a sort of marital relationship long enough to be considered by the society as being husband and wife. In Tulsa & Ors. Vs. Durghatiya and Another (2008) 4 SCC 540 the Apex Court further held where a man and woman are proved to have been living together as husband and wife it will be presumed unless contrary is proved that they are living together in consequence of a valid marriage. However, in this case the petitioner has not been able to prove by the cogent evidence that she has lived together with the opposite party as husband and wife. The proceedings for maintenance u/s 125 Cr.P.C are tentative in nature and the court has to be prima facie satisfied about the marital status of the parties which is subject to the decision of Crl. Rev. P. No. 31 of 2021 Page - 6 of 9 any competent civil Court [Santosh Vs. Naresh Paul (1998) 8 SCC 447].
14) In light of the above decision and on the basis of the evidence on record, I cannot come to a positive prima facie conclusion that the petitioner and the opposite party has lived together as husband and wife for a considerable length of time. That the factum of marriage is itself under challenge, I am of the considered opinion that relief under section 125 Cr.P.C cannot be granted to the petitioner which is meant for protecting rights of this legally married wife or someone in a marital relationship which is the petitioner has not been able to prove. In consequence thereof, the prayer for maintenance stands dismissed." [7] Heard Mr. A.K. Pal, counsel appearing for the petitioner. Also heard Mr. P. Sen Chowdhury, learned advocate representing the respondent.
[8] It appears from impugned judgment that the learned Judge, Family court examined the evidence adduced on behalf of the parties in great detail and having relied on the decisions of the Apex Court in Dwarika Prashad Satpathy Vs. Bidyut Prava Dixit & Anr. reported in (1999) 7 SCC 675, Tulsa & Ors. Vs. Durghatiya & Anr. reported in (2008) 4 SCC 540 and Santosh Vs. Naresh Paul reported in (1998) 8 SCC 447 came to the conclusion that there were no materials on record for the court even to be prima facie satisfied about the marital status of the parties. The Family Court therefore, declined to grant any maintenance allowance to the petitioner. Crl. Rev. P. No. 31 of 2021
Page - 7 of 9 [9] Counsel appearing for the petitioner submits that the observations made by the Family Court is completely erroneous because the evidence adduced on behalf of the petitioner was not appreciated by the Family Court. Counsel submits that petitioner is a poor woman who was married to the respondent in accordance with the rites of Muslim marriage and lived with the respondent for a considerable period of time as his wife and therefore there is no reason to decline maintenance allowance to her. Counsel further submits that her husband has a handsome income from his occupation and landed properties whereas she does not have the ability to maintain herself. Counsel, therefore, urges the court to allow her petition and issue direction to the respondent to pay maintenance allowance to her. [10] Mr. Sen Chowdhury, learned advocate appearing for the respondent on the other hand argues that petitioner could not adduce iota of evidence to prove her marriage with the respondent. Except herself, she could not even produce any witness who saw her living with the respondent as husband and wife. Counsel submits that though strict proof of marriage is not required under section 125, Cr.P.C., the purpose of this provision would be frustrated if anyone is granted maintenance allowance without even prima facie proof of the marital status. Counsel submits that the learned Family Court by a detailed judgment has rejected the claim of the petitioner. Since, there is no Crl. Rev. P. No. 31 of 2021 Page - 8 of 9 illegality in the said judgment, counsel urges the court to dismiss the petition.
[11] It is true that petitioner could not produce any witness to have seen her living with the respondent as husband and wife. She could not also produce any evidence to have witnessed her marriage with the respondent. The respondent on the other hand stated in his evidence as OPW-1 that before marrying one Rup Ali, petitioner married two other persons who deserted her. With regard to execution of Kabinnama, the respondent stated that he never executed any Kabinnama and the said document, if any, was forged by the petitioner. His witness Tuta Mia [OPW-2] and Ful Mia [OPW-3] also stated that they had never seen any marital relationship between the petitioner and the respondent. The said witnesses further stated that petitioner is the wife of one Rup Ali and their marriage is still subsisting. [12] Having perused the entire record and the evidence on record, this court is of the view that there is no wrong in the impugned judgment. The learned Family Court has discussed the evidence in detail and having relied on the decisions of the Apex Court rightly concluded that there was no material before the court even to be prima facie satisfied about the marital status of the parties. It was observed by the court that there was no prima facie proof before the court that Crl. Rev. P. No. 31 of 2021 Page - 9 of 9 the petitioner and the respondent ever lived together as husband and wife for a considerable length of time.
[13] I find no reason to interfere with the said decision of the Family Court. Resultantly, the criminal revision petition stands dismissed and the case is disposed of. Send down the LCR. Pending application(s), if any, shall also stand disposed of.
JUDGE Rudradeep Crl. Rev. P. No. 31 of 2021